Empowering Women Since 1881

Ricci v. DeStefano

June 30, 2009

In a decision that could have far-reaching implications for employers and the labor force nationwide, yesterday the U.S. Supreme Court voted 5-4 in favor of the firefighter plaintiffs in the case Ricci v. DeStefano.

In Ricci, 20 white firefighters and one Hispanic firefighter sued the city of New Haven, Connecticut, for throwing out the results of a 2003 promotional exam for which they received passing test scores. Since only one Hispanic and not a single African American firefighter received qualifying scores, New Haven feared the test had a disparate impact on minority applicants — which in the city’s estimation would have resulted in a violation of Title VII of the 1964 Civil Rights Act — and thus decided to withhold offering promotions. The suing firefighters, in turn, argued that their Title VII rights protecting them against employment discrimination had been violated by the city’s decision.

District Judge Janet Bond Arterton dismissed the firefighters’ suit before it went to trial, ruling the decision to discard the test results was justified under the law. The case then went before a panel of judges on the U.S. Court of Appeals for the 2nd Circuit, which unanimously affirmed the lower court’s decision. The case proceeded to be heard by the full 2nd Circuit, which upheld the panel’s ruling in a 7-6 decision. An appeal was then made to the Supreme Court.

In March, AAUW joined the National Women’s Law Center, in conjunction with the National Partnership for Women and Families, in signing an amicus brief in support of the defendants prior to the oral arguments before the Supreme Court. The brief AAUW signed was in support of the city of New Haven’s position that if the court were to rule in favor of the petitioners, it could severely chill efforts by employers to comply with Title VII and eliminate sex-based barriers in employment. Unfortunately, the court ruled in favor of the petitioners.

Justice Anthony Kennedy, who wrote the majority opinion, was joined by Justices Samuel Alito, Antonin Scalia, Clarence Thomas, and Chief Justice John Roberts in ruling that New Haven violated Title VII. “The city rejected the test results because too many whites and not enough minorities would be promoted,” Kennedy wrote. “Without some other justification, this express, race-based decision-making violates Title VII’s command that employers cannot take adverse employment actions because of an individual’s race.”

Justices Ruth Bader Ginsburg, Stephen Breyer, David Souter, and John Paul Stevens dissented. Justice Ginsburg wrote the minority opinion decrying the decision, in which she argued that the city of New Haven acted appropriately toward the goal of eliminating all race- and sex-based barriers in the workplace, considering that persons of color comprise 60 percent of New Haven’s population and there is a history of race discrimination in the firefighting department in that city.

The law still requires employers to avoid policies that are discriminatory in practice, and we hope that despite this ruling, employers will try to make sure they are providing equal opportunity in the workplace for their employees.

4 Comments

This post makes no sense nor does Justice Ginsburg’s dissent. What does any prior discrimination (never mind that none was shown to have existed in New Haven’s fire department) have to do with whether these tests were job-related. Let’s assume the tests were fairly related to the job – what are we saying – that unqualified people should be elevated to command positions because blacks suffered discrimination long ago? That just sounds wacky – just because blacks didn’t qualify and meet legitimate criteria doesn’t mean the criteria are discriminatory, no more than Justice Ginsburg’s law clerk hiring criteria are “discriminatory” because all the law clerks she has deemed to meet that criteria happen to be white.

I totally agree. Reverse discrimination is as wrong as it’s counterpart. The people of New Haven deserve the most qualified people regardless of race. I can’t believe that AAUW would promote and support discrimination.

There’s a long history in this country of tests being used as a way to keep minorities out – for example, elaborate “literacy” tests designed to keep black people from voting in the South. There are also issues with tests written only by white people. I can recall taking an intelligence test in which one question dealt with putting in order a sequence of steps of how a sailboat would move. Obviously kids from a white, wealthy country club family will have had more opportunity to see a sailboat than kids from a poor, urban minority family. So starting from the assumption that ‘there’s no problem with the test’ is a big assumption when, historically, there have been a lot of problems with tests. Mostly what tests tell you is who is a good at taking tests, not who is good at an actual job. This is why the whole question of tests as a way of determining promotion continues to be litigated.

Mariner and Edie: thank you for your comments, we appreciate you taking the time to let us know your thoughts. We agree that there is no place in our society for any kind of discrimination and that increasing opportunities for women and minorities must only be done on the merits and in accordance with anti-discrimination law; we expound further upon that view in more detail in our position paper on affirmative action. In fact, it is precisely because we oppose discrimination that we signed an amicus brief in favor of New Haven’s position in the Ricci case. Based on the test results, as well as their understanding of statutory law and court precedent, New Haven officials believed that the examination had a disparate impact on the minority firefighters who took the test. The decision to throw out the exam results was not to discriminate against Frank Ricci or any of the other applicants who passed, but rather to ensure that every New Haven firefighter was granted the same opportunity to qualify for promotional opportunities. In addition to the case facts at hand, we signed onto the brief to support the important concept of employers being able to take voluntary steps to reduce discrimination against their own employees. The position we took in this case was affirmed initially by the federal district court, then by the second circuit panel – and four of the nine Supreme Court justices wound up agreeing as well. AAUW looks forward to the day when men and women of all backgrounds are given a fair shake on an equal playing field, and we will continue working toward that end.